Your essential guide to the air carrier access act - PowerPoint Presentation

Your essential guide to the air carrier access act Tom Stilwell

Current Scope of the ACAA 2 March 26, 2015

Air Carrier Access ActEnacted in 1986 following holding in U.S. Dept. of Transportation v. Paralyzed Veterans of America (U.S. 1986)Case held that regulations prohibiting discrimination by federally funded programs did not apply to airlines that did not receive direct federal subsidies.The DOT issues regulations to enact and enforce the ACAAAs of March 13, 2009, amended to apply to domestic and foreign air carriers 3 March 26, 2015

Four General Duties Cannot discriminate against a person with a disability by reason of such disabilityCannot require a passenger to accept special services that are not requestedCannot exclude a passenger with a disability from benefits or services available to other passengersCannot take adverse action against a passenger who invokes their rights under the act 4 March 26, 2015

Purpose: More than Anti-Discrimination Aimed at ensuring services, facilities, and accommodations are provided in a respectful and helpful mannerNo Strict LiabilityDeterra v. America West Airlines, Inc. (D. Ma. 2002) – Ticketing agent talked over the head of a wheelchair passenger and referred to the passenger as an “it.” Isolated instances of distasteful, uncivil or inappropriate demeanor by airline personnel is not an act of discrimination or a violation of the Act. 5 March 26, 2015

Who Must Comply? US Carriers - applies to all operations and aircraft regardless of locationForeign Air Carriers - applies to flights that begin or end at a US airportCode Sharing - US carrier must ensure all legs operated by a foreign air carrier comply Even if the Act would not otherwise apply Airlines responsible for the conduct of their contractors (i.e. wheelchair service) Practice Tip: Negotiate Strong Indemnity & Additional Insured Provisions 6 March 26, 2015 Light Spikes by Jay Baker/ Llewelyn-Davies Sahni, Inc. Houston Intercontinental Airport (Installed ~1990)

Enforcement of the ACAA Airline must provide a complaint resolution official at each airportPassenger may file a complaint with DOTDOT investigates & conducts a hearingFor written complaints made within 45 days, Airline must respond in 30 days Must specifically admit or deny fault Provide summary of facts DOT may impose a fine of $27,500 per violation Appeal of DOT ruling directly to the US Federal Court of Appeals 7 March 26, 2015

Refusal of Carriage Cannot exclude a passenger even when the disability “results in appearance or involuntary behavior that may offend, annoy, or inconvenience crewmembers or other passengers” Only if the carrier objectively determines that the individual represents a “direct threat” to the safety of the passengers or crew. Meaning a "significant risk to the health or safety of others that cannot be eliminated” Must be an individualized assessment Relying on current medical knowledge and Best available objective evidence Carrier must select least restrictive response from the point of view of the passenger If the carrier can protect health or safety of others while allowing travel, it must do so 8 March 26, 2015

Seating Accommodations Allow pre-boarding if requestedFor mobility impaired passengers, seating in a row with moveable arm restsAdjoining seats for personal care attendantsBulkhead seating for passengers with a service animalCannot seat in an exit row if physical or communication impairments existCannot deny travel to one passenger in order to offer seating accommodation to a disabled passenger May charge for additional seats if passenger's condition (i.e. stretcher) occupies more than one seat space 9 March 26, 2015 Dogbe v Delta Airlines, Inc. (E.D. NY 2013) No requirement to provide accommodations in a class of service not purchased by the passenger

Assistance During Flight Must Assist With:Moving to and from seatOpening food packages (if requested) and identifying food (if needed)Access to lavatoriesStowing / retrieving carry-on itemsCommunication (sight/auditory impairment)Extensive Assistance Is Not Required Assistance with eating Assistance in a lavatory Provision of medical care 10 March 26, 2015

Wheelchair assistance Between gates & to or from terminal entranceIncludes key functional areas: ticketing and baggage claimBoarding & deplaningIncludes ground wheelchairs; motorized carts; boarding wheelchairs; on-board wheelchairs; ramps; lifts.Arriving carrier statutorily responsible to assist passenger to the connecting flightDoes not extend to areas beyond the carrier's control Edick v Allegiant Air LLC. (D. NV. 2012) Plaintiff with a brain tumor falls in the parking garage and brings suit for failure to provide wheelchair service. Court finds no violation of ACAA. 11 March 26, 2015

Wheelchair Response Time Should be prompt - 30 minutes or lessFrom time of arriving flight and/or disembarkingNot judged by the information/need conveyed at ticketingEven if the passenger is traveling with companionsGlass v Northwest Airlines, Inc. (W.D. Tenn. 2011) – Plaintiff falls down an escalator. 24 minutes from arrival and 10 minutes after disembarking is not a violation. Johnson v Northwest Airlines, Inc. (N.D. Ca. 2010 ) – Plaintiff falls on a moving walkway between gates. Short delay of 12 minutes is not a violation. Jackson v United Airlines, Inc. (E.D. Va. 2009) – Plaintiff falls while walking to baggage claim. 30 minute wait created a fact question for the jury. Glatfelter v Delta Air Lines (Ga. Ct. App. 2002 ) – Plaintiff falls on escalator between gates. 15 to 20 minutes after arrival is not a violation. 12 March 26, 2015

Visual & Hearing impairments ACAA extends to the ticketing and reservation systemsText Telephone Systems (TTY) must be availableDec. 12, 2015 - deadline for websites to meet W3C recommendations of 11 December 2008Airport automated kiosksKiosks installed after Dec 12, 2016 must meet DOT design criteriaDecember 12, 2022 - 25% of kiosks at each location in the airport must meet DOT design criteria 13 March 26, 2015

Disease & Medical Issues Medical issue or disease may qualify as a disability under the ACAAIs the passenger a "Direct Threat" to health and safety of others? Based on objective medical evidence.Test is ease of transmission from casual contact in the aircraft cabin, not mere severity of the consequences of the diseaseAids has severe consequences, but is not readily transmissible in an aircraft cabin, so an HIV+ passenger cannot be refused transportSARS is readily transmissible and possesses severe health consequences, transport can be refused If a passenger has a medical certificate outlining measures for safe travel, the carrier must provide transport unless it cannot carry out the medical recommendations Unless a direct threat, cannot delay the flight, impose restrictions not imposed on other passengers, or require a medical certificate 14 March 26, 2015 Price v. Delta Airlines, Inc. (D. Vt. 1998) – Removal of a passenger with HIV & Kaposi's Sarcoma whose lesions were draining and smelled was discrimination. Newman v American Airlines, Inc. (9 th Cir. 1999) removal of blind passenger with heart condition who could not produce a medical certificate was discrimination.

Service Animals A service animal is different from an emotional support animalWhat is a service animal?No definition Carrier can rely on identification cards, written documentation, harnesses, tags, or credible verbal assurancesAccommodation requiredNo advance notice required 15 March 26, 2015 Adler v. WestJet Airlines, Ltd. (S.D. Fla. 2014) Plaintiffs were removed from a flight due to a flight attendant’s concern over a service dog, a 4 pound yorkie. Plaintiffs alleged injury and humiliation. Court allowed claims for negligence and negligent training.

Service Animal?March 26, 2015 16“Service Bulldog” pictured at the Louis Armstrong New Orleans International Airport December 2014

Emotional Support Animal No accommodation required absent medical documentationLetter from a licensed mental health professional within last 12 monthsIdentifies the passenger as possessing a DSM IV condition and needs the animalCarrier may require advance notice and advance check-in17 March 26, 2015

Unusual Service Animals No accommodation required: snakes, reptiles, ferrets, rodents, and spidersDiscretion of the carrier: miniature horses, pigs, monkeysFactors to considerweight and size of the animalwhether it poses a threat to health or safety of others whether it will significantly disrupt cabin service whether it will be prohibited from entering a foreign country serviced by the flight Foreign carriers need only accommodate dogs 18 March 26, 2015

Preemption? One of the first issues decided in a caseAt its core, preemption is a fight over choice of law & venue:Determines jurisdiction – state v federalDetermines claim viabilityDetermines standard of care appliedDetermines remediesallowed 19 March 26, 2015

What Preemptive Effect Exists? ACAA does not contain a clause creating a federal cause of action for an aggrieved passengerDoes not contain an express preemption clause that prevents assertion of causes of actionDOT believes that its regulations "substantially, if not completely, occup[y] the field of nondiscrimination on the basis of handicap in air travel.“DOT warns “interested parties should be on notice that there is a strong likelihood that state action on matters covered by this rule will be regarded as preempted.”Courts do not uniformly agree 20 March 26, 2015

No Implied Cause of Action Alexander v Sandoval (U.S. 2001) - Strictly curtails the ability to recognize an implied cause of actionPost Sandoval - Courts generally agree that no implied right of action exists under the ACAA9th Cir. – Gilstrap v United Air Lines, Inc. (2013) 2 nd Cir. – Lopez v Jet Blue Airways (2011) 10 th Cir. – Boswell v SkyWest Airlines, Inc. (2004) 11 th Cir. – Love v Delta Air Lines (2002) Casts into doubt prior opinions of 5th Cir. - Shinault v American Airlines, Inc. (1991) 8th Cir. - Tallarico v Trans World Airlines, Inc. (1989) March 26, 2015 21

Conflict Preemption of State Law Claims? Occurs when federal law conflicts with state lawMakes it impossible for private party to comply with federal and state lawOr state law stands as an obstacle to accomplishment of the objectives of federal lawMajority Trend: No Conflict 9 th Cir. – Gilstrap v United Air Lines, Inc. (2013) 3 rd Cir. – Elassaad v Independence Air, Inc. (2010) DOT Remedies are Non-Exclusive Contrarian View: DOT enforcement conflicts with state causes of action Compass Airlines LLC. v. Montana Dept. of Labor & Industry (D. Mt. 2013) Expressly disagrees with the holding of the 9 th Cir. in Gilstrap . Court believes airlines will stop cooperating with DOT investigations if subject to state law causes of action/damages for the same conduct 22 March 26, 2015

Field Preemption of State Law Claims? 23March 26, 2015

Field Preemption? Yes – DOT Regulations serve a safety function and completely preempt state law claimsCompass Airlines Inc. v Montana Dept. Labor & Industry (D. Mt. 2013). Plaintiff removed from an aircraft due to the use of a portable oxygen concentratorNo – ACAA & DOT regulations serve an anti-discrimination purpose onlyElassaad v Independence Air, Inc., (3 rd Cir. 2010) – Amputee passenger falls on aircraft exit stairway ACAA does not displace state law regulation of safety At most, the Act displaces state law anti-discrimination statutes Gilstrap v United Air Lines, Inc., (9 th Cir. 2013) – Passenger with osteoarthritis claims injuries from failure to provide assistance in airports ACAA is an economic regulation only ACAA defines the federal standard of care owed by the airline Plaintiff can rely on state law for elements of breach, causation, damages and remedies Baugh v. Delta Air Lines, Inc. (N.D. Ga. 2015) – Blind passenger does not receive requested assistance and falls during boarding Follows holding and rationale of Gilstrap ACAA regulations detail how an air carrier is to treat a passenger. Thus ACAA preempts state law standard of care. Plaintiff can rely on other state law elements for negligence and remedies Because no preemption, federal jurisdiction does not exist. Case is remanded to state court 24 March 26, 2015

Field Preemption? Hybrid View IT DEPENDS! Look at the basis for the claim and the regulations on that issueOften, claim concerning whether or not the carrier provides service is preemptedBut, claim arising from how the service is provided – safely or poorly – is not preemptedSummers v Delta Airlines (N.D. Ca. 2011) – Mandatory assistance in disembarking does not preempt claims regarding condition of the exit path (stairs) Negligence & negligent infliction of emotional distress claims survive if premised on a standard of care set forth in the ACAA Gill v JetBlue Airways Corp. (D. Ma. 2011) – Incomplete quadriplegic passenger falls out of an aisle boarding chair during transfer Complaints regarding the failure to provide service are preempted, but negligent provision of assistance is not Negligent training claim must utilize the standard of care in the ACAA; state law will provide damages for the breach Brown v Alaska Air Group - (E.D. Wa. 2011) – Elderly passenger fell walking on the tarmac to the aircraft. Claim for failure to provide assistance is preempted; extensive regulations govern duty to assist a passenger between aircraft Negligent provision of assistance is not preempted Hodges v Delta Air Lines - (W.D. Wa. 2010) – Mobility impaired passenger fell from an aisle chair during deplaning. Consumer protection claims are preempted Negligent provision of assistance claim allowed March 26, 2015 25

Warsaw Convention v. ACAA Warsaw Convention preempts claims arising from violations of the ACAAMikerina v. Delta Air Lines, Inc. (D. Ma. 2011) – Moscow to NYC flight was diverted after plaintiff fainted in-flight due to a medical condition. Plaintiff was removed from the flight in Poland and was not allowed to re-board.Warsaw preempts “local law” so plaintiff’s discrimination claims under the ACAA are preempted Same Holding King v American Airlines, Inc. (2 nd Cir 2002) Turturro v Continental Airlines, Inc. (S.D. NY 2001) Waters v Port Authority of NY & NJ (D. NJ 2001) Brandt v American Airlines (N.D. Ca. 2000) But see, Adler v WestJet Airlines, Ltd. (S.D. Fla. 2014) – state law claims for violation of the ACAA may continue subject to the treaty’s damage limitations March 26, 2015 26

The Future of ACAA Claims: Continued aging of average passenger loadsAdvancement in medical treatment and technology increase mobility of impaired passengersLess protection of industry, more protection of consumers Thus, less federal preemption of ACAA claims * Alex Stilwell (Age 4) at “Wings over Houston” airshow 2011 27 March 26, 2015